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Friday, July 13, 2012

Irreparable Harm

In March, I wrote about a lawsuit that posed a threat to my daughter’s voice.Maya, who is four years old and unable to speak, uses an app called Speak for Yourself (SfY) to communicate, and the creators of SfY were being sued for patent infringement by Prentke Romich Company (PRC) and Semantic Compaction Systems (SCS), two much larger companies that make designated communication devices (not iPad apps).You can read the original post here, and see the numerous news articles that were spurred by this case here.Maya’s voice, and the voices of all of the other users of Speak for Yourself, was being threatened in a very real, serious way.

Last month that threat was heightened when PRC/SCS requested that Apple remove the Speak for Yourself app from the iTunes store, and Apple complied with that request (despite the fact that PRC/SCS never asked the court for an injunction to halt the sales of the app—a move that would have allowed for due process and the decision of an impartial judge).I wrote about the take-down and its potentially grave implications for Maya and the other users of the app, which can be seen here (and press from that post is here).Here’s a quote from that post, explaining our fear and frustration:

With the removal of Speak for Yourself from the iTunes store, the SfY team has lost the ability to send out updates or repairs to the people who are currently using the app.We are now only one Apple update away (to iOS, the operating system for the iPad) from having SfY rendered useless (because if the new operating system was to be incompatible with the code for SfY, there would be no way for the team to reconfigure the app to make it compatible with the new OS and send out the updated version).Our app could stop working, and Maya would be left unable to speak, and no one would be able to help us.

Since that post, the parties have addressed the take-down of the app in court.At this point the judge presiding over this case has heard PRC/SCS claim that this app is infringing, it should be taken down, and taking it down isn’t irreparably hurting anyone.He has also heard SFY claim that this app is not infringing, taking it down is destroying their business, and it should be reinstated.

You know who he hasn’t heard from?

The people in this case who have the most at stake---the users of the Speak for Yourself app.

Until today.

This morning the court was informed that three users of the Speak for Yourself app intend to file a motion to intervene in this case.My daughter, Maya, and two other children, Robert Hambright and Schuyler Rummel-Hudson, are seeking to make the court aware that this case is not simply a business issue.They need the judge to understand that the decisions made in this case about the future of this app will seriously impact a group of people who are currently not represented in the case.

The motion to intervene is not an act of siding with either party in the case.We are not offering any opinion as to whether Speak for Yourself is infringing on the patents of PRC/SCS, as we know very little of patents and that issue is best decided by the court.Truly, that is not the important issue to Maya, Robert, Schuyler, and the other users of this app.What matters to them is that their use of the app is not jeopardized, regardless of where the profits are going.It’s crucial that the court is able to hear, understand, and take into account the (previously) silent victims in this case---the users who rely on this app to communicate.The judge’s decision in this case will affect three businesses, but more importantly it will affect the communication abilities of many nonverbal children and adults.

Without filing a motion to intervene, the abilities of Maya , Robert, and Schuyler to communicate run the risk of being terminated without the court ever even becoming aware that they were on the line in the first place.Our kids will not sit idly by and watch their voices become collateral damage, inadvertent casualties to a corporate patent dispute.They have a right to protect their interest in this case, and the time to step up and do so is now.

Why now?

Earlier this week the parties in the lawsuit filed briefs that centered around the idea of irreparable harm.The brief from SFY asserts that the take-down of their app from the iTunes store is causing irreparable harm to their business, both through monetary loss and critical damage to their reputation, and therefore the app should be reinstated.The brief from PRC/SCS states that SFY is failing to show irreparable harm, and therefore the app should remain out of the iTunes store.If I were an independent observer with nothing at stake in this case, watching these companies argue about whether irreparable harm is being caused by this take-down would actually be almost comical, as neither brief actually acknowledges the glaring, indisputable irreparable harm at the heart of the issue—the damage to the users of this app.

If Speak for Yourself ceases to function when the iPad’s operating system is updated this fall, and Maya and Robert are suddenly left unable to communicate . . . that will be irreparable harm.

The panic, confusion, frustration, and sadness of these children as they tap their touchscreens, trying to open their “talkers,” and are met with blank screens . . . that will be irreparable harm.

When Maya wants to call Parker (her dog), but is unable to use the loud voice of her iPad, and so she just sits alone whispering “Pa! Pa! Pa!” futilely trying to say it loudly enough for the dog to hear her . . . that will be irreparable harm.

Each day that Maya and Robert will have to wait, silent again, while our families search for some alternate communication system . . . that will be irreparable harm.It’s worth noting that both of our families have used other top-rated systems in the past (including the Proloquo2Go app and the Vantage Lite device made by PRC) and we have deemed these systems to be inferior to the Speak for Yourself app with regards to meeting the needs of our children. This means that Maya and Robert would be left using some sort of system that does not allow them to communicate with the ease and understanding that they currently have with SFY.Again, irreparable harm.

Unlike Maya & Robert, Schuyler is old enough to truly advocate for herself.At her last IEP meeting she informed her team that she wanted to use the iPad rather than her speech device, in part because she could use it for school work as well as speech, but also because it didn't immediately point her out as a kid who can't speak. Schuyler specifically chose SfY as the app that she feels most comfortable using to communicate.If the app ceases to work, she will either be limited to choosing an app that doesn’t allow her to communicate with the same speed and efficacy, or she will be relegated into using a communication device that brings with it a social stigma over which she has already expressed concern . . . irreparable harm.

The time has come to make sure that these kids are heard, to move their stories from the court of public opinion into the court of law.Personally, I’ve spent months considering this move.Having had no experience with the legal system, the idea of court and filings and motions and briefs . . . it made me uncomfortable, anxious.In the end, Maya’s right to a voice clearly outweighs my anti-litigious nature, and so we move together and stand behind her right to protect her interests in this case, to make her story heard.

Maybe you should sue SFY for selling you a false bill of goods? Are the goods that ... Oh, come on. You know the truth. Who is really at fault here? Do we actually have to swear on a Bible to get the truth out on this one?

All users of SfY should counter sue PRC/SCS for violation of 1st amendment rights, sence from what I have read SfY's co lisensed the patents in question. It's an argument over roulties on the patent... SfY rightly stating as I understood that since they licenced it they should be able to use it royalty free... And the PRC/SCS saying pay us royalties...

I am sure the SfY lawyers would be thrilled if the kids are allowed to intervene. I am not sure if the Court will let them. SfY didn't fail to talk about the kids because it only cares about its business. Maybe that's the case, but the law really only lets them discuss their own "irreperable harm."Usually, a Court won't allow the type of intervention you seek, but this is not a usual case. I have hope that the Court will allow intervention here. After all Patent protection is supposed to be based on public policy grounds...so maybe the Court will find the issue relevant. I certainly hope so!

You said you've used other communication systems with your daughter other than SFY. Those systems you mentioned above are all based in pictures. Have you tried other modalities? a more natural way of communicating? A bonafide language, one which convey abstract ideas and doesn't rely on technology? Have you tried using SIGN LANGUAGE with your daughter? Hope to hear from you

Annie, I believe that SfY does truly care about its users---like you said, they have to speak for their business in court because that is where their primary argument lies. This is one of the reasons that I think the intervention is necessary--we need to have our stories heard to represent the users.

Alejandra, I want Maya to be able to speak to everyone, not just those who understand sign language. She does sign some words, but because of some fine motor issues her signs are only understood by those who know her well. Using a speech generating device will let her communicate with anyone who understands English---this is essential to me, especially because she should be able to talk to her peers, people on the street, at the playground, etc.

Anonymous 7/16 9:44, Thank you for your obviously well thought out and helpful legal strategy advice.

When SfY first appeared on the AppStore I had a bad feeling that PRC was going to come unglued when they saw it. It is a dead ringer for the PRC patented speech aids I've seen as a clinician for over 20 years. Not only that, but I also read in the legal papers that the developers of SfY attended PRC clinics leading up to the release of their SfY speech app. So my own opinion is that SfY pushed their luck and now they are getting a face full of lawyers and legal trouble. And YES..PRC and Semantic do have speech apps for iPads etc. It is called TouchChat and is HALF the price of SfY. So the argument that PRC doesn't offer an app for the iPad isn't true. SfY should have spoken to a patent attorney BEFORE they spent a nickel developing SfY.

I've never heard of TouchChat belonging to PRC, and they don't appear to claim it as their own, either. I thought it was by Saltillo through Silver Kite, and that the WordPower option was somehow licensed through SCS. Obviously, I could be wrong (I'm just a parent, not a pro, after all). But in the past year PRC has put out a few (3, I think?) apps that are basically teaching games, and I'm pretty sure that that made a big announcement about their "first app" before the first of those was released. Regardless, TouchChat is a great app (we looked into it as well) but not a good fit for us.

The makers of SFY are speech therapists who specialize in AAC--it makes sense to me that they've been to training on PRC devices . . . I would venture to guess that they've been to Dynavox trainings, too, but I'm just guessing.

Again, the patent case will (and should) be decided by the court. Our concern isn't the patent, it's ensuring the availability of an app that our children are relying on to speak with their families. How nice it would be if PRC/SCS would rescind their take-down request, and make a public statement along the lines of "If, during the course or as an outcome of this litigation, we gain control of this AAC app we will continue to make it available under the PRC name." Then the people with the most to lose here could rest assured that while corporate issues still kind of suck, at least the big guys aren't going to sacrifice their voices.